A Paradox About Duty to Refer

from Cyberounds: Health Law and Bioethics
Maxwell J. Mehlman, J.D.

Educational Objectives

Upon completion of this Cyberounds(R), the participant should be able to:

* Discuss the paradox of the duty to refer
* Discuss how this paradox can confuse judges in malpractice cases
* Describe the correct rule of liability in failure-to-refer cases.

Given all the unkind jokes I hear about lawyers, I rarely choose to criticize the profession but I occasionally make an exception when judges espouse positions and reasoning in particular cases that are, shall we say, inexplicable. So I thought I’d share with you a case entitled Murphy v. Nordhagen, decided by an intermediate appellate court in Wisconsin (588 N.W.2d 96, 1998).

The case was a malpractice suit brought against Nordhagen, a chiropractor, by a patient who alleged that the chiropractor had failed to properly treat her herniated disc. Specifically, the patient accused the chiropractor of failing to refer her to a medical doctor for diagnosis and treatment of her condition. The court upheld a dismissal of the suit on the ground that a chiropractor “does not have a duty to refer a patient who is not treatable through chiropractic means to a medical doctor.” (588 N.W.2d at 99).

Was the Court wrong?

At first blush, the court’s position seems absurd. Surely, someone who seeks health care services from a chiropractor, or from any other health care provider whose scope of practice is more limited than a physician’s, should be able to rely on being referred to a physician if the problem is beyond the scope of the limited practitioner’s expertise. This is borne out by many other legal authorities. The Supreme Court of New Jersey, for example, states that “chiropractors have long been expected to diagnose and refer patients whose conditions require medical or other treatment,” adding that “[t]he rule protects the public health and welfare by making certain that chiropractic treatment shall be given only when genuinely justified.” (Rosenberg v. Cahill, 492 A.2d 371, N.J. 1984).

The first paradox

The effect of the Wisconsin court’s rule could be to give chiropractors a blank check when it comes to legal liability for treating ailments that are beyond their expertise. So, here’s the first paradox: Under the court’s ruling, a chiropractor in Wisconsin can be sued for unreasonably causing injury to a patient in the course of treating a condition that is properly within the scope of chiropractic but might not be held liable for causing injury when treating a patient for a condition that is beyond the scope of chiropractic care. This is particularly troubling in view of the fact that chiropractors have been known to attempt to treat patients for serious illnesses utterly beyond the chiropractor’s expertise.

Although judges, with all due respect, sometimes may do stupid things, they are not stupid people. So what was the reasoning behind the Wisconsin court’s decision? It’s another paradox. Here’s the court’s language:

[B]ecause implicit in a requirement that a chiropractor refer a patient to a medical doctor is the imposition on the chiropractor to make a medical determination that the patient needs medical care, such a determination could not be made without employing medical knowledge. Because a chiropractor is not licensed to make such a determination, we hold that a chiropractor does not have a duty to refer a patient who is not treatable through chiropractic means to a medical doctor. (588 N.W.2d at 99)

What should we reasonably expect a professional to know?

The court’s reasoning has a certain plausibility (of course paradoxes always do, which is why they are such mental challenges): How can we expect a person who is not a physician to know when someone else needs to see a physician? Wouldn’t that entail having precisely the type of medical expertise that they are presumed to lack?

But wait. Doesn’t this reasoning also apply to the duty of primary care physicians to refer patients to specialists? How can a physician be liable for not referring a patient to a specialist without requiring the physician to know what the specialist knows in the first place? Yet, in dozens of cases, physicians have been held to this duty. [For a compilation, see Jerald J. Director, Annotation: Malpractice: Physician’s Failure to Advise Patient to Consult Specialist or One Qualified in a Method of Treatment Which Physician Is Not Qualified to Give, 35 A.L.R.3d 349 (1999).]

Are chiropractors somehow different in the eyes of the Court?

What gives? Is there something different about physicians and chiropractors such that only physicians should be expected to know when to refer a patient and a chiropractor should not? Is it the fact that a chiropractor is not trained the same as a physician? But, then, neither is a primary care physician trained the same way as a board-certified neurosurgeon. Indeed, it is precisely because the chiropractor is not a trained physician that the patient needs the protection of being referred to a physician in the appropriate circumstances.

A personal analogy about Ski Patrol

This issue actually takes on a personal dimension for me since I am a member of the National Ski Patrol. In my role as a ski patroller, I often puzzle over whether or not to tell the patient to see a doctor and, in some states, I might be sued if I make a mistake.

It is the analogy to primary care physicians and ski patrollers, not to mention virtually all other non-physician health care professionals, that exposes the flaw in the Wisconsin court’s thinking. Obviously, a chiropractor, like a primary care physician or ski patroller, cannot be expected to have the actual knowledge and skill of a physician or, in the case of a primary care physician, of a specialist. But they can be expected to know when the patient may need the services of a physician or specialist. Ski patrol training, for example, stresses two subjects: How to provide first aid to an injured skier and when to advise that skier to see a physician. We are taught the signs and symptoms that indicate the need for greater expertise than we are assumed to possess.

One standard fits all

The same standard should be applied to chiropractors. They should know what to look for in a patient to tell them whether to proceed with further chiropractic care or to refer the patient to a physician. This isn’t expecting the chiropractor to act like a physician — to use the Wisconsin court’s language, to make a “medical determination – but to act like a reasonable chiropractor, or ski patroller, or primary care physician, under the circumstances.

So the correct approach for the courts, when dealing with a failure-to-refer case, is to ask whether the defendant exercised the proper level of skill in determining whether or not to refer the patient. In the case of a chiropractor, this won’t be the same level of skill that a physician would be expected to employ. The question isn’t whether the chiropractor behaved the way a reasonable physician should but the way a reasonable chiropractor should. In some cases, chiropractors may make mistakes and proceed to treat patients for conditions for which they should have seen a physician but, so long as the chiropractor’s mistakes are reasonable, they should not be legally liable.